End-of-Life Provision Loses Favor

By

Janet Adamy

Updated Aug. 13, 2009 12:01 a.m. ET

The cost of caring for patients who are near death accounts for a big piece of the government's medical spending. But a furor over a provision for government-paid counseling to plan for end-of-life care is steering lawmakers away from the issue.

ENLARGE

John Geary listens to Sen. Arlen Specter (D., Pa.) speak about a health-care overhaul at a town-hall meeting in State College, Pa., on Wednesday.
Associated Press

Tucked inside a sweeping House bill to overhaul the health system is a provision that would require Medicare to pay physicians to counsel patients once every five years. During those sessions, doctors could discuss how patients can plan for such end-of-life decisions as setting up a living will, obtaining hospice care or establishing a proxy to make their health decisions when they are unable to do so.

The end-of-life counseling provision in the House bill is expected to cost a few billion dollars over the next decade. But health policy experts say it could lower medical spending by reducing end-of-life medical care that patients don't want.

Opponents say the provision shows that architects of the health-care overhaul want to ration seniors' care. Democratic lawmakers say no part of the House bill calls for rationing care. Physician counseling would be voluntary.

ENLARGE

But growing complaints over the provision are leading key lawmakers to conclude that the health overhaul should leave out any end-of-life counseling provisions. A group in the Senate Finance Committee that is attempting to craft Congress's only bipartisan health bill has decided to exclude such a measure, Senate aides said this week.

"There is some fear because in the House bill, there is counseling for end of life," Iowa Sen. Charles Grassley, the top Republican on the Senate Finance panel, said at a public meeting in his home state Wednesday. "You shouldn't have counseling at the end of life. You ought to have counseling 20 years before you're going to die....And I don't have any problem with things like living wills. But they ought to be done within the family."

Dumping the counseling provision would thwart a broad effort in recent years by doctors and hospitals to encourage patients to plan for end-of-life care. Advocates say such planning relieves the burden on families and helps doctors know how aggressively to treat those who are very ill.

What stirs many critics is that end-of-life care often is discussed in the same context as cost savings.

About 5% of Medicare beneficiaries die each year, according to a 2001 study published in Health Affairs. But spending during the last year of life accounted for 27.4% of total Medicare spending, the report found. Government data crunchers say this report is the most comprehensive measure of this spending to date.

The Urban Institute, a nonpartisan research center, found that the government could save $90.8 billion over 10 years by better managing end-of-life care. The savings would result from training aimed at discouraging doctors from providing care simply because they would get paid for it, and from having teams at hospitals help terminally ill patients manage their pain once they chose to stop treatment, among other things.

The institute's report, issued last month, concluded that much end-of-life spending isn't sought by patients and goes against their families' expressed preferences.

"People are getting overtreated at the end of life," said Robert Berenson, a former Medicare official in the Clinton administration and a fellow at the Urban Institute. "This would save money and improve the fidelity to people's wishes."

Reducing overtreatment, though, is fraught with challenges. Doctors can't necessarily tell whether a patient is near death. And many patients and families don't want to face death before they have to. Changing Medicare's incentives around end-of-life care would involve a more substantial overhaul of the way doctors are paid.

Currently, Medicare doesn't reimburse for counseling for end-of-life care, a deterrent to doctors, many of whom supported incorporating the idea into the House bill.

"We were delighted to see this in the legislation," said Cecil Wilson, president-elect of the American Medical Association. The provision, he says, is really about making sure doctors get paid for their time. "This is one of the more egregious examples of mischaracterization that I have seen," he said.

Rep. Earl Blumenauer (D., Ore.) said doctors helped persuade him to co-sponsor the measure and called them "some of the most outspoken" on the issue. Mr. Blumenauer said he anticipated the provision, which was aimed at helping families navigate difficult medical decisions, not saving money, would remain in the bill.

The insurance industry is "supportive of the concept" of advanced-care planning, though it hasn't taken a specific stance on the House provision, said Robert Zirkelbach, a spokesman for trade group America's Health Insurance Plans.

Hospitals have been encouraging patients to plan since the 1991 Patient Self Determination Act required them to ask inpatients whether they had advanced care directives and inform them of their right to refuse treatment. As part of a public campaign in 2005, the American Hospital Association encouraged people to carry in their wallet a card with the name and phone number of a family member or friend who could explain their care wishes.

However, in a report ordered by Congress and published last year, Rand Corp. found that the Patient Self Determination Act didn't increase the overall portion of patients with advanced-care directives. "Legislation, in general, has not been seen as a major influence in improving care toward the end of life," the report found.

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